Recommendations for Prosecutors

Requests for postconviction DNA testing may come from a variety of parties, including inmates, their families, defense attorneys, or police. When a request for postconviction DNA testing is received, recommendations for prosecutors include the following:

Get as much information as possible about the inmate and the case, including defenses proffered at trial and defenses currently claimed.

Determine whether the case is suited to DNA testing, depending on the category of the case. Evaluate previous DNA testing.

Provide information to the requestor, including the fact that DNA testing could have a negative effect if the inmate's DNA testing results are placed in a DNA criminal identification bank and he is identified as a perpetrator of other crimes.

Recommendations for Defense Counsel

When a request for postconviction DNA testing is received, recommendations for defense counsel include the following:

Perform extensive screening to determine if the case is suited to DNA testing.

If a case is determined to warrant DNA testing, conduct an extensive search for evidence, consulting with prosecutors throughout the search.

Do not contact the victim. It is up to the prosecutor's office, through its victim services agency, to determine if it is appropriate to inform the victim of testing.

Defense counsel should appreciate that convictions are rarely reopened and that a noncontentious attitude may expedite the location of needed biological samples and accelerate the testing process that is an innocent client's best hope for relief.

On the other hand, defense counsel must also recognize and inform their clients that truth may have a price and that inculpatory results will have to be disclosed to the prosecution. Convicted felons are not entitled to testing without risking the consequences of false claims of innocence.

Role of the Judiciary

Judges may feel compelled to take a proactive stance to protect the inmate seeking relief if the prosecution and defense are refusing to cooperate. A court may be especially likely to exercise its discretion in the interests of justice in a potential category 1 case, particularly if the court fears that the passage of time may make it impossible to ascertain the validity of a claim of actual innocence.

The judge's assistance may be sought in connection with such matters as locating and preserving evidence, obtaining discovery from laboratories, and compelling third parties to provide samples for elimination testing.

The court might also consider whether to exercise its discretion to appoint an expert to assist the court in a case that presents disputed, complex, technical issues relating to DNA testing or interpretation.

Trial courts will likely be involved in category 1 and category 2 cases.
[2] By issuing orders, the court can play an important role in helping obtain access to evidence prior to testing, which is part of the screening process and helps determine if DNA evidence will be irrelevant to the case.

In the pretesting stage, it is recommended that the court set an informal conference with counsel to discuss issues such as the type of DNA analysis to be used, whether it will be necessary to test the victim's relatives or third parties, and whether additional samples need to be obtained from the victim.

Once postconviction DNA test results have been obtained, if the results are favorable to the inmate and no alternative explanations exist, the court should be prepared to grant a joint request to vacate the conviction. In the absence of a joint motion, an evidentiary hearing should be set to determine if there is a reasonable probability of a change in the verdict or judgment of conviction.

Role of Law Enforcement Personnel

Cooperation on the part of law enforcement officials may be crucial; materials needed for testing or retesting may be in their possession.

Consequently, they can assist in:

Finding the evidence that was sent to the laboratory for testing.

Identifying and locating other evidence that is now testable.

Preserving the evidence.

Recommendations for Laboratory Personnel

A DNA testing laboratory may be requested to serve as a consultant to the attorneys, the defendant, or the judge. The laboratory also has an obligation to perform quality DNA tests and to interpret and report the results accurately and without bias.

The laboratory should test only the amount of sample needed to obtain reliable test results and retain untested samples for possible future testing.

The public or private laboratory skilled in DNA testing can assist in the postconviction process in a number of ways, including:

Agreeing to conduct some pro bono testing at the request of a judicial officer, prosecutor, defense counsel, or project.

Making its personnel available to assist participants in a postconviction proceeding who lack adequate technical expertise.

Role of the Victims' Advocate

The role of the victims' advocate in postconviction proceedings is essential and complex. The advocate's usual role is to provide support, which will likely be needed during a postconviction proceeding as it may be extremely traumatic for surviving victims and their families to learn that a person found guilty is now attempting to vacate the conviction. The early involvement of victims' advocates lessens the chance of victims and their families making this discovery through the media and ensures that they are kept informed and treated with appropriate concern and respect.

In cases in which biological evidence was collected and still exists — and if the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner — advocates may also have to prepare their clients for the possibility that the inmate will be exonerated. If this occurs, advocates face the difficult task of providing support for the person whose misidentification of the culprit may have been the chief evidence leading to the original guilty verdict.

Advocates will at times be called upon to persuade a victim to agree to DNA testing even though the victim is convinced of the accuracy of the identification he or she made at the inmate's trial. For exclusionary purposes, samples may also have to be tested from persons who were engaged in sexual relations with the victim at the relevant time. Victims may be reluctant to provide names or to urge these persons to cooperate. In order to expedite postconviction proceedings, victims' advocates must make victims appreciate the desirability of cooperating because DNA testing may lead to the apprehension of the person who was truly guilty and prevent future criminal acts.

It is important to note that a number of States passed victims' rights statutes that require notification of victims, including notification of appeals proceedings, prison release, and application for pardon or commutation of sentence. Agencies involved in postconviction DNA cases should make certain they are complying with any applicable State statutes. (See a summary of DNA postconviction statutes prepared by DNA Resources.com.)

It is extremely important that crime victims and their family members are provided with information and approached with great sensitivity regarding postconviction issues. Notification of requests for DNA testing should be made by the prosecutor through a victim assistance specialist.

Avoid unreasonable and intrusive sample collection. Explain technical aspects of testing and the significance of the samples request. Ensure that information about the location of victims and family members remains confidential.

Provide information about testing results in a timely fashion, in person, if possible.

[ntoe2] Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. In these cases, prosecutors and defense counsel should concur on the need for DNA testing.

Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results would support the petitioner's claim of innocence, but reasonable persons might disagree as to whether the results are exonerative. The prosecutor and defense counsel may not agree on whether an exclusion would amount to an exoneration or would merely constitute helpful evidence.